Typical Common Law Claims: Negligence

Michael Goldman
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An accomplished litigator representing his clients in complex environmental disputes throughout the country.

Negligence claims are also alleged in most environmental lawsuits.  For instance, in Ronald Holland’s A-Plus Transmission & Automotive, Inc. v. E-Z Mart Stores, Inc., neighboring landowners brought an action against the former owner and lessee of a gas station based on negligence after soil and groundwater tests revealed fuel-related constituents on their neighbors’ land.[1]

If you are not willing to risk the usual, you will

have to settle for the ordinary.” Jim Rohn

Similarly, in Boggs, et al. v. Landmark 4 LLC, plaintiffs alleged that carcinogenic and toxic chemicals used in defendant’s oil and gas operations were discharged into the ground or into the waters near the plaintiffs’ home due to defendant’s negligent planning, training, and supervision of staff, employees, and agents.[2]  Plaintiffs further claimed that the defendant failed to disclose to the plaintiffs and to public authorities, material facts concerning the nature, extent, magnitude, and effects of the contaminants emitted, released, stored, handled, processed, transported, and disposed of in and around the facility. On this basis, plaintiffs claimed that defendant did not exercise reasonable care to protect plaintiffs and their property.  As a result of defendant’s negligence, plaintiffs claimed they were exposed to toxic substances, toxic fumes, and/or carcinogens.  Plaintiffs also claimed that the defendant was negligent per se for violating its duties under applicable state and federal regulations intended to ensure the public safety from toxic exposures.[3]

As in any negligence case, the plaintiff must show that the defendant owed a legal duty to the plaintiff, that the defendant breached the duty, and that the breach proximately caused the plaintiff’s injury.[4]  In this regard, the plaintiff generally claims that the defendant has a duty to conduct itself in a manner as to not contaminate the plaintiff’s property.  However, the standard of care can be a moving target as the appropriate standard of care will change with advancements in technology and some pollution is an unavoidable part of certain industrial activities.  As one commentator stated, “spills will occur, lines and tanks will leak, and equipment upsets will happen because human action is involved.”[5] 

Generally, the prior owner of real property is not liable for injuries caused by dangerous conditions on property after the conveyance, unless the conditions were not disclosed or actively concealed.[6] However, the exception does not apply if the buyer discovered or should have discovered, or had actual notice of the conditions.[7]  It should be noted that ownership is not an element of the claim and will not preclude a party from asserting a claim.[8]

Related to negligence is the theory of negligence per se.  Negligence per se is a concept in which a legislatively imposed standard of care is adopted by the civil courts as defining the conduct of a reasonable and prudent person.[9] In such a case, the jury is not asked to decide whether the defendant acted as a reasonable, prudent person would have acted under the same or similar circumstances.[10] The statute itself states what a reasonable, prudent person would have done.[11]  If an excuse is not raised, the only inquiry for the jury is whether the defendant violated the statute or regulation and, if so, whether the violation was a proximate cause of the accident.[12] For example, in Texas, Statewide Rule 8 as well as Section 85.321 of the Texas Natural Resources Code could both serve as the basis for negligence per se claims related to oilfield contamination.[13] A statute is presumed to be prospective unless it is clear from a fair reading of the statute that the legislature intended it to apply to both past and present controversies.[14] As a result, statutes enacted after the alleged conduct cannot support a negligence per se claim.[15]

Key Points

  • Negligence claims are also alleged in most environmental lawsuits. 
  • As in any negligence case, the plaintiff must show that the defendant owed a legal duty to the plaintiff, that the defendant breached the duty, and that the breach proximately caused the plaintiff’s injury.  
  • The plaintiff generally claims that the defendant has a duty to conduct itself in a manner as to not contaminate the plaintiff’s property. 
  • However, the standard of care can be a moving target as the appropriate standard of care will change with advancements in technology and some pollution is an unavoidable part of certain industrial activities. 
  • Generally, the prior owner of real property is not liable for injuries caused by dangerous conditions on property after the conveyance, unless the conditions were not disclosed or actively concealed. 
  • However, the exception does not apply if the buyer discovered or should have discovered, or had actual notice of the conditions.  
  • Related to negligence is the theory of negligence per se
  • Negligence per se is a concept in which a legislatively imposed standard of care is adopted by the civil courts as defining the conduct of a reasonable and prudent person. 
  • A statute is presumed to be prospective unless it is clear from a fair reading of the statute that the legislature intended it to apply to both past and present controversies. 
  • As a result, statutes enacted after the alleged conduct cannot support a negligence per se claim.
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[1] Ronald Holland’s A-Plus Transmission & Automotive, Inc. v. E-Z Mart Stores, Inc., 184 S.W.3d 749, 752 (Tex. App.—San Antonio 2005, no pet.).

[2] Boggs, et al. v. Landmark 4 LLC, No. 1:12-cv-00614 (N.D. Ohio, Mar. 12, 2012) (Doc. No. 2, page 1-3, 7-8, 10-11).

[3] Id.

[4] Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009).

[5] William R. Keffer, Drilling for Damages: Common Law Relief in Oilfield Pollution Cases, 47 SMU L. REV. 523, 527 (1994).

[6] Hicks v. Humble Oil & Refining Co., 970 S.W.2d 90, 93 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).

[7] Id.

[8] City of Waco v. Schouten, 385 F.Supp.2d 595, 604 (W.D. Tex. 2005).

[9]Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 305 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Carter v. Willliam Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979)).

[10] Id.

[11] Id.

[12] Id.

[13] Id. Emerald Oil and Gas, L.C. v. Exxon Corp., 228 S.W.3d 166, 168 (Tex. App.—Corpus Christ 2005), rev’d 331 S.W.3d 419 (Tex. 2010).

[14] Id.

[15] Hicks, 970 S.W.2d at 93.

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